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Recently, I announced my intention to resign from the European Free Trade Association’s Court bench after 22 years as a Judge, and after having had the honour to be elected by my fellow Judges as the Court’s President for 15 years.

As Europe evolves once more with Brexit, there are a number of paths the United Kingdom may take as it charts its future outside of the European Union. Some of these could involve the Efta, a body whose creation was the result of British politicians.

The possibilities, and viability, of the UK becoming an Efta member once more as part of the European Economic Area, or docking its intended future agreements with the European Union to the Efta Court have been much discussed, debated and contested.

The EEA Agreement extends the single market to three Efta countries, with the Efta states having their own enforcement and judicial bodies: the Efta Surveillance Authority and the Efta Court.

As I move on with my career, it is with not a little pride that I observe its current standing, and look ahead with some personal views to its future.

In my years on the Efta Court bench I have sat in more than 260 cases, many of which have seen the United Kingdom make submissions before the Court or have had British counsel representing parties. We have upheld traditional Efta values, such as free trade, competition, responsibility, efficiency and transparency.

Single Market law, like all law, requires consistent interpretation. We mostly face novel legal questions; meaning that the Efta Court frequently has the first opportunity to interpret the law. And even if there is ECJ case law, we have sometimes opted for another solution.

Some uninformed commentators have claimed that the Court is some sort of ‘vassal’ – this is unquestionably false. Indeed, one of the most significant achievements of the Efta Court is its engagement in dialogue with other courts and jurisdictions. As regards the ECJ, the Efta Court remains the only other court of general jurisdiction whose judgments are regularly taken into account by the EU judiciary when interpreting EU law.

Indeed, the Efta Court has contributed substantially to the development of EU law from the outside. The ECJ’s Advocates General thereby act as gateways. That the ECJ “would prevail” over the EFTA Court as some commentators have asserted, overlooks the way in which the two courts’ relationship has developed; it does not reflect reality.

Still, the Efta Court has always taken homogeneity seriously. In so doing, the Efta Court carves out its own path. This own judicial style owes much to the Court’s working language: English. After 24 years, I can say without fear of contradiction that the Efta Court acts with self-confidence and in full independence. Were it otherwise, the raison d’être for a separate judicial mechanism of the Efta States could be put into question.

The Efta Court has also looked beyond the EEA to the jurisprudence of the European Court of Human Rights. In turn, the Efta Court’s judgments have been cited not only by the ECJ, but also by the European Court of Human Rights as well as by national courts outside of the EFTA Court’s jurisdiction including the German Supreme Court, the Swiss Federal Supreme Court and the Court of Appeal of England and Wales.

In matters of foreign trade, sovereignty has remained with the Efta States. In practice, the Efta States often enter into free trade agreements with other countries and blocs together, but they may also enter into their own bilateral free trade agreements. Similarly, in other important areas such as agriculture and fisheries the Efta States maintain their own policies.

Looked at in the context of Brexit, Britain is now in a similar position to my own country, Switzerland. Seasoned observers recognise that the likely content of the sought ‘deep and special partnership’ will require a judicial forum to resolve disputes. As ECJ President Koen Lenaerts has stated recently, the judicial mechanisms within the EEA – the working relationship between the ECJ and the Efta Court - work perfectly. Moreover, together, Iceland, Liechtenstein and Norway have found it advantageous to have their own court. Post-Brexit Britain may be able to make use of the EFTA Court in two ways which may provide a practical solution to Brexit’s legal conundrum. Britain could seek to join the Efta side of the EEA and so remain in the Single Market.

Conversely, should Britain choose to leave the Single Market, it could try to dock to the Efta pillar’s institutions – the Efta Surveillance Authority and the Efta Court - for a transitional period, or otherwise as part of the UK’s intended ‘deep and special’ partnership with the EU. The wheel need not be re-invented. In both scenarios, Britain may have a judge on the bench.

It is a matter for politicians, on all sides, whether Efta may prove a natural home in the future, but as I look ahead, I see many strands of possibility for the Court and the EEA to take up, and I look forward to observing their future developments as I too take my next steps.

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